288 P. 1053 | Or. | 1930
This is an action of forcible entry and detainer. Plaintiff alleges:
"Wherefore, Plaintiff prays for judgment against defendant and for the restitution of the said premises."
Defendant, after a general denial, alleges as an affirmative answer:
"It was Stipulated and Agreed between the defendant and this plaintiff, that, so long as, the plaintiff was permitted to hold possession and the occupancy of said building that, the defendant could and should have the right to occupy and lease the said desk room from the plaintiff so long as, the plaintiff held his lease from the owner and until such time as the plaintiff was compelled to vacate said building by the said owner for the purpose of new construction of another structure upon said lot. That thereafter said time and on or about July 1, 1928, it was agreed between the plaintiff and this defendant, the defendant should and would pay in the future succeeding months the sum of $40 per month upon the said terms of leasing and letting of said desk room by the plaintiff to this defendant. *111
Plaintiff replied admitting the property was rented to defendant from "month to month" but denying the terms of the lease as alleged by defendant.
The cause was submitted to the court without a jury. During the pendency of the action the court, upon application of the defendant, issued a temporary restraining order against plaintiff directing him not to remove a certain sign upon the building occupied by defendant. Thereafter the court proceeded to dispose of the cause as in equity and entered a decree in favor of plaintiff directing restitution of the property and awarding judgment against defendant for rental alleged to be due. Defendant appeals.
There is no transcript of the evidence. Therefore, we are not concerned with the argument of counsel *112 for appellant as to the terms of the lease. The case must be considered only in the light of the record before us. Under such circumstances we must assume that defendant defaulted in payment of rent and that there was cause for his eviction.
The pleadings, however, contain no allegations of fact upon which to base equitable jurisdiction. Certainly the mere fact that a temporary restraining order was issued in a law action does not thus transfer the cause into equity. It was a simple action of forcible entry and detainer wherein the sole issue involved was the right to possession of the property in dispute: Hostetler v. Eccles,
"It is the unbroken line of decisions that, unless especially provided by statute, in an action of unlawful or forcible detainer, possession of the land is the only recovery that can be had. No question of rent, or damage to the land, is involved." Citing authorities in support.
Also see 26 C.J. 868.
That part of the decree awarding plaintiff judgment against defendant for rental alleged to be due is reversed. The remainder of the decree is affirmed. Defendant will be allowed costs and disbursements in this court by reason of being obliged to appeal from an erroneous decree in the particular mentioned.
COSHOW, C.J., and BEAN and BROWN, JJ., concur. *113